Posts Tagged ‘murder’

The recommendation of the Farlam commission that some police members can only be charged with attempted murder because it could not be proved which officers had shot which miner is, on the law as it stands, wrong.

It is important to extract the facts that this recommendation appears to concede: that these officers unlawfully fired at the miners with the intention to unlawfully kill them. This places in issue only the link between the conduct of each officer and the death of any miner.

In circumstances such as these, our law resorts to the doctrine of common purpose. It is a controversial doctrine and was certainly abused under apartheid. For what it’s worth, I am opposed to its use and believe that there are adequate alternatives in our law (see James Grant Common Purpose: Thebus, Marikana and Unnecessary Evil 2014 1 SAJHR 1). Nevertheless, common purpose is relied upon in our criminal courts on a daily basis and it has been sanctioned by the Constitutional Court (in the case of Thebus v S 2003 (6) SA 505 (CC)). To my knowledge, the doctrine has never been invoked against the police, but there is nothing in principle why it cannot be used.

The doctrine is designed for exactly the scenario that Farlam says prevents a murder conviction – when one cannot be certain, which one, of a group of attackers, actually killed a victim.

The doctrine holds that each person acting together with others in an unlawful attack, is to be regarded as having done whatever everyone did. So, if A, B and C, agree to attack and kill Y, and that A will stand as lookout, while B will strike Y with a stick, and C will shoot Y, it does not matter that C, in shooting Y, causes his immediate death, all will be liable to a murder conviction for the death of Y. It is irrelevant that B’s conduct (with his stick) only inflicted minor and insignificant wounds, nor even that A is causally irrelevant to the death of Y. Indeed, both A and B are causally irrelevant to the death of Y. Nevertheless, on our law, as it stands, all three may be convicted of murder under the doctrine of common purpose. It is equally irrelevant that it cannot be established which police officer caused the death of which miner.

It is helpful to understand the work that common purpose actually does. It allows our courts to pretend that whatever anyone in a common purpose does, is what everyone does. Thus, on the example above, A does, on our law, what he does, but also whatever B and C does. And so with B and C. B does what he does, but also what A and C does. And so on.

If a police officer can be convicted of attempted murder for his/her part of the attack on the miners, they are almost invariably liable to a conviction of murder – on an application of common purpose. Every police officer who triggers the operation of common purpose, did whatever every other police officer did in that common purpose. Thus, an officer who fired but perhaps missed, also did what his fellow officers in the common purpose did – some of whom fired, struck, and killed the miners – but it doesn’t matter who.

It is true that common purpose has its own requirements and that there are two forms of it. In this case, recognition of these different forms and the requirements of each reveal that it is not only those officers present on the scene who may be convicted of murder, but that liability for murder may stretch up, to anyone who was a party to the plan to resort to the ‘tactical option’, and who foresaw that anyone may be unlawfully killed in the execution of that plan.

The two forms of common purpose are known as prior agreement and active association. Common purpose by prior agreement for murder requires that the parties must, at some prior meeting, foresee the possibility that people may be unlawfully killed upon the execution of their plan (S v Madlala 1969 (2) SA 637 (A); S v Nzo 1990 (3) SA 1 (A)). It is certainly possible that at all and any meetings that discussed the ‘tactical’ option, the unlawful death of miners was foreseen by some. Whoever in those meetings had this foresight – on this form of common purpose – are regarded as having done what they foresaw may happen – even if they were nowhere near the scene at the time of the killing. This has serious consequences, because it allows liability for murder to creep up the chain of command, restrained only by what was foreseen as possible.

The second form of common purpose, active association, is resorted to when the first, prior agreement, doesn’t apply. It is possible that many of the officers who fired their weapons on the day, were at a previous meeting at which they foresaw the possibility of unlawful killing, and thus already satisfied the requirements for common purpose to operate. However, if not, they may have formed a common purpose (by which they can be held liable for an unlawful killing by another officer), by active association, if (Mgedezi 1989 (1) SA 687 (A); Thebus above): 1) the officer was present on the scene; 2) s/he were aware of the attack; 3) s/he intended to be part of the attack; and 4) s/he did something to manifest his/her sharing of the common purpose.

Before we consider how this may apply to the scenario at the scene we must remember what Farlam concedes: that some officers unlawfully fired at the miners and intended to unlawfully kill them. Assuming this, the requirements of common purpose by active association may well be satisfied, as follows: 1) The officers who fired at the miners were present on the scene; 2) They must have known of the unlawful attack on the miners; 3) they must have intended to be part of the unlawful attack on the miners; 4) they did manifest their sharing by virtue of firing their weapons. Thus, even if they are not liable by prior agreement, they may well be liable to a conviction of murder by operation of common purpose by active association.

This is not a suggestion that all officers on the scene are guilty of murder, nor even that those who discharged their weapons are necessarily guilty of murder. It is the argument that if, as the Farlam recommendation appears to concede, some officers unlawfully fired at the miners with the intention to unlawfully kill them, the absence of a link between the conduct of each officer and the death of any miner can be cured by an application of common purpose. It means that if any officer could be convicted of attempted murder, s/he could be convicted of murder. Of course, the opposite is true, but is worth noting: if an officer cannot be convicted of, at least, attempted murder, there will be no basis on which to convict him/her of murder, by an application of common purpose.

Thus, by an application of the doctrine of common purpose, any officer who could be convicted of attempted murder, may be liable to a conviction of murder. Furthermore, liability based on common purpose for any murder may easily creep up the chain of command to anyone in any planning meeting who foresaw that their plan may result in unlawful killings.

– James Grant

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If, on a charge of murder, an accused claims to have been mistaken as to whether he was under attack – that he thought the person he shot and killed (who it transpires was his girlfriend) was imminently about to attack him, the veracity of this claim would seem to be undermined by evidence that the girlfriend screamed loudly before she was shot. The question arises whether this fact, that the girlfriend screamed, must be proved beyond a reasonable doubt? More importantly, must each individual piece of evidence of screaming be proved beyond a reasonable doubt? Is this not what an accused is entitled to in a criminal trial?
Virtually anyone who is old enough to watch TV will tell you that the standard of proof required of a prosecution, in a criminal trial, is proof beyond a reasonable doubt.
Lawyers will explain that this means that every requirement of the criminal offence in question must be proved beyond a reasonable doubt. They will also explain that the case against an accused and all the evidence against the accused must be considered in its totality. That is, that courts are not permitted to take a piecemeal approach to the evaluation of evidence. Many will say that all evidence against an accused person must be proved beyond a reasonable doubt. This, they will say, all follows.
What is often not recognised is that it also does not follow from the ultimate onus of proof (that the prosecution must prove its case beyond a reasonable doubt) that all evidence must be proved beyond a reasonable doubt. One possible source of this error may lie in the adoption in our law of “the cardinal rules of logic” pronounced by our former Appellate Division (now the Supreme Court of Appeal) in the case of S v Blom (1939 AD 188). These cardinal rules of logic were set out as a guide to how courts ought to draw inferences in the context of circumstantial evidence.
Conventionally, evidence is thought of as falling into two discrete and mutually exclusive categories: direct evidence and circumstantial evidence. On one hand, direct evidence, such as the testimony of an eyewitness, requires that no inferences are supposedly necessary from this sort of evidence. Direct evidence is conventionally thought of as evidence which, if true, is direct evidence of the fact in issue. Circumstantial evidence on the other hand is considered to be evidence which, if true, is not direct evidence of the fact in issue. Instead, it is evidence of a fact from which an inference must be drawn to the fact in issue. Thus where a question of fact before the court is whether the accused shot and thereby killed the victim, direct evidence may take the form of a witness testifying to the fact that s/he saw the accused shoot the victim. In the alternative, circumstantial evidence would be evidence such as that of a witness who testifies that s/he saw the accused who was armed with a gun go into the room where the victim was shot dead, that s/he heard a bang, and saw the accused exit the room shortly thereafter. This sort of evidence is circumstantial in that it requires that inferences must be drawn from the evidence (of what the witness saw) to the fact in question – did the accused shoot and kill the victim?
A first point worth observing is that circumstantial evidence is often considered to be weaker evidence and a so-called circumstantial case is one which is considered to be more easily refuted – at least relative to the case in which the prosecution will produce direct evidence. However, it is not the case that circumstantial evidence is necessarily weaker than direct evidence. The classic example is that of the persuasive value of fingerprint evidence (which is circumstantial evidence) for the purpose of identification, compared with that of an eyewitness.
Beyond that, as is the case in respect of many attempted distinctions in law, the distinction between circumstantial and direct evidence is not sacrosanct and breaks down on analysis. It breaks down at least in the sense that it is incorrect to imagine that direct evidence or indeed any evidence is free from requiring the court to draw inferences (Zeffertt and Paizes, The South African Law of Evidence, p 99). This is best illustrated by the following example (drawn from Wigmore on Evidence): The accused (X) is charged with the murder of the victim (Y) by shooting. X denies that s/he shot Y. The prosecution calls a witness, who testifies that s/he saw X arguing with Y, that s/he saw X produce a firearm, and point it at Y, heard a loud bang, and saw Y fall to the ground. The defence explains that it has only one question for the witness: whether the witness saw the bullet strike Y.
The point of the illustration is only to draw one’s attention to the fact that even given what appears to be a straightforward case of direct evidence, one must nevertheless draw inferences. The point ultimately is that all evidence requires a court in considering its verdict to draw inferences from the evidence. Zeffertt and Paizes explain that: “All evidence requires the trier of fact to engage in inferential reasoning.” (The South African Law of Evidence, p 99). Some evidence requires fewer inferences, this would be traditionally so-called direct evidence whereas other evidence, traditionally circumstantial evidence, will require more inferences. Nevertheless the point must be observed that the court is never free of drawing inferences and therefore the rules that govern the drawing of inferences govern the court in its ultimate evaluation of all evidence.
Thus we are left with the ultimate problem: how is a court to evaluate the evidence? We must recall that the standard of proof required is beyond a reasonable doubt. So does this require that every piece of evidence that the court considers significant, be tested against this standard (of a reasonable doubt) and only if it passes can the court rely on it, whereas if it fails, the court must discard it? For many lawyers this is obviously what a court must do. It follows from the onus of proof, and something more – it follows from the so-called “cardinal rules of logic” from the case of S v Blom (above).
The “cardinal rules of logic” in Blom represent the law on the drawing of inferences in criminal trials. They state that (to paraphrase):
1. The inference sought to be drawn must be consistent with the proved facts.
2. The proved facts must exclude all other inferences except the one sought to be drawn.
The second rule seems to be little more than a restatement of the standard of proof in a criminal trial. The inference must be the only reasonable inference – presumably, otherwise it may not be drawn. The problem in criminal cases, is that in its ultimate assessment of guilt, all evidence relies upon inferences, and so all evidence requires the application of the rules of Blom. Each inference must be the only reasonable inference – right?
This would seem to fit well with a case in which say, the accused (X) is charged with murder of a victim (Y) if the only piece of evidence is eyewitness testimony in which the witness testifies that s/he saw X shoot Y, and that, upon immediate inspection, the witness had found Y to be dead. Let us assume (again) that X denies that s/he shot and killed Y. X claims further to have never met the victim and to have been nowhere near the scene of the crime at the relevant time.
Since the evidence of the witness is the only evidence against the accused, the prosecution’s case depends on it. If this intermediate fact represents “an indispensable [link] in a chain of reasoning toward an inference of guilt” (from the Australian case of Sheperd v The Queen (1990) 170 CLR 573 at 579) the strength of the prosecution’s case is, of course, only as strong as the link in the chain. If this piece of evidence falls below the standard of proof beyond a reasonable doubt, a reasonable doubt must exist in respect of the accused’s guilt, and s/he is entitled to an acquittal. Just as a chain is only as strong as its weakest link, so must all the links (evidence) be proved beyond a reasonable doubt. Thus, in the example given, the only piece of evidence, the testimony of the witness, should be subjected to the ultimate standard of proof: is it true beyond a reasonable doubt? But what if the evidence is less straightforward. If for instance there was only evidence that:
1. Someone resembling X was seen in the vicinity of the crime scene. The eyewitness says he is 90% sure it was X;
2. The ballistic expert is able to say, because of damage to the bullet, that the likelihood that the bullet was fired from X’s gun is 80%;
3. A partial fingerprint is discovered at the scene which yields only enough points of similarity with the accused’s right thumb, so that the forensic expert can only be 70% sure this print is that of X.
Blom requires that, at least on the second “cardinal” rule of logic, the inference sought to be drawn must be the only reasonable inference. But what if none of the possible inferences are reasonably possible and what if there are other reasonable inferences? If we assume that we adopt, nominally, a 99% standard of proof as proof beyond a reasonable doubt, what if none of these pieces of evidence exclude all other reasonable possible inferences:
1. There is a 10% (reasonable) possibility that the eyewitness identified the wrong person;
2. A 20% (reasonable) possibility that gun that fired the fatal shot is not that of the accused; and
3. A 30% (reasonable) possibility the fingerprint is not that of the accused.
None of these items of evidence stand up to the standard of a reasonable doubt, and, on the 2nd rule in Blom, no inferences can be drawn at all. Blom seems to demand ‘chain-reasoning’. Bellengère and Palmer (et al), state:
“Even where the court may draw a reasonable inference to the exclusion of all other reasonable inferences, it must nevertheless assess that inference to be persuasive beyond a reasonable doubt before it can rely on the inference to sustain a criminal conviction” (Oxford, The Law of Evidence In South Africa, p 202).
However, if one regards the evidence as the “strands in a cable” (following Sheperd v The Queen (1990) 170 CLR 573 at 579), quite a different result follows. The strength of a cable or rope is, of course, made up of the combined strength of its strands – and each strand may be, by itself, quite weak. To pursue this analogy, pieces of evidence may be considered together, even if each, by itself, does not satisfy the standard of beyond a reasonable doubt, to support an inference.[1] At once it will be obvious that this is contrary to the specific instructions in Blom. Yet, our courts are clear that in the drawing of the inferences they must take account of the totality of the evidence, and must not consider evidence on a piecemeal basis. (S v De Villiers 1944 AD 493; S v Reddy 1996 (2) SACR 1 (A); R v Mtembu 1950 (1) SA 670 (A)).
Is it that Blom is wrong, and if so, why has it not been ejected from our law? The problem is that Blom seems right, given that it seems to fit neatly with the criminal onus, and it is sometimes right – depending on the work that the inference is doing. Blom appears to demand “chain-reasoning” through-out, whereas, on occasion, “rope-reasoning” is more appropriate. If the inference sought to be drawn will carry an entire case, Blom would be an appropriate standard to employ. But if one is engaged with numerous intermediate facts, none of which are crucial, or necessary in and of themselves, then the “cardinal rules of logic” in Blom, can lead one into a logical fallacy. When one should adopt “chain-reasoning”[2] (as directed by Blom), or “rope-reasoning” is not straightforward – it all depends on the work that the evidence has to do in a given case. Perhaps one method would be to always adopt “rope reasoning” on the analogy that if a single piece of evidence or fact is crucial, it equates with a single, and only strand of a rope – of a rope of one strand.
So, if for instance, on a charge of murder, the accused claims to have been mistaken as to whether he was under attack – that he thought the person he shot and killed (who it transpires was his girlfriend) was imminently about to attack him, and the veracity of this claim would seem to be undermined by evidence that the girlfriend screamed loudly before she was shot. For our purposes let us assume that, given the context, it would entirely undermine the accused’s claim of mistake. The question of fact as to whether she screamed becomes so crucial as to represent an ultimate issue which would seem to properly attract the requirement that it must be proved beyond a reasonable doubt. However, evidence (of intermediate facts) from which it may be inferred that she screamed need not pass the ultimate standard of proof beyond a reasonable doubt. If five witnesses claim to have heard a woman scream at about the relevant time on the night of the incident, each need not be true beyond a reasonable doubt before the court, considering this testimony together, and together with ballistic and pathology reports to the effect that she incurred a severe wound which would probably have caused her to scream before she was incapacitated, concludes that a woman screamed that night, before she was shot.
There is a substantial difference between raising some doubts, even reasonable doubts in respect of some of the evidence against an accused, and raising reasonable doubt in respect of the case against the accused.

[1] Assume that, for our purposes, proof of these (intermediate) facts beyond a reasonable doubt (99% on our assumption), the accused would be guilty. For those who may wonder what may be going on at the level of maths (although it is controversial whether using maths is appropriate at all), instead of needing all the factors to be true at the same time (in the case of ultimate issues/facts), when we are dealing with an intermediate fact though, where any number of pieces of evidence could prove the fact, the formula swings around – we now ask what are the chances of all of the pieces of evidence offered to prove that fact all being wrong (false) at the same time. Thus, items of evidence at 90, 80, and 70% produce a probability of 99.4% (0.1 x 0.2 x 0.3 = 0.006)
[2] Chain reasoning must also be carefully chosen and applied in case the “links” are not independent. (Tillers revision of Wigmore on Evidence IA (1983) at 1113, reported in Zeffertt and Paizes p 117.)

*I wish to thank Professor Andrew Paizes (co-author of Zeffertt and Paizes, The South African Law of Evidence) for his helpful comments on an earlier draft. I have amended this post in line with his suggestions. Nevertheless, any mistakes remain entirely mine.

Many spectacular and sensational claims have been levelled at Oscar Pistorius in the media: that he has a bad temper, threated to break someone’s legs, is obsessed with firearms, fired a gun out of his sunroof, and another in a restaurant, was in illegal possession of ammunition and browsed pornographic websites on the night that he shot and killed Reeva Steenkamp. Presumably these claims – if proved – would tend to show that Oscar has a ‘bad character’. But there is a question that demands an answer: what does any of this matter? What would it matter if Pistorius can be shown to have a bad character? The answer is that it depends. During the plea explanation tendered by Pistorius, his defence team indicated that they would oppose the admissibility into evidence of ‘inadmissible’ character evidence as similar fact evidence. The admissibility and value of similar fact and character evidence is far from straightforward, but in light of the intense public interest in the Pistorius case, and the aspersions cast on his character, it seems necessary to attempt to deconstruct the law on this issue. Part of the complexity of trying to understand the place and admissibility of character and similar fact evidence in law is that it seems that the target is moving. When focused on similar fact evidence (concerning prior bad acts), it may seem that one is truly concerned with the character of the accused, and the opposite, when attempting to focus on character evidence, it may seem that one is truly concerned with similar fact evidence. These intuitions are, in my view, correct. That is because of the inextricable link between the two forms of evidence. Ordinarily, evidence of the disposition of a person is inadmissible because it is simply irrelevant. We know that good people do bad things, and bad people do good things. But there may be occasions on which, or people, in respect of which, sometimes, what they have done in the past, or the way they have done something, does seem to matter. In the classic case of R v Smith ((1915) 11 Cr App Rep 229) in which the accused was charged with murdering his wife – found dead in the bath. His defence was that she had suffered an epileptic seizure and drowned. There was evidence that he would benefit financially from his wife’s death. More damning though, was evidence that this had occurred on another two occasions: two other female partners had died in the bath and the accused stood to benefit from their deaths. This was all a terrible coincidence, or there was something about the accused that linked the incidents – that made it more likely that he had killed all three of them. This is indeed what the court found – the evidence of the other deaths made the claim of an accident in respect of the death of his wife implausible. It is at the point where we must say that there is something about the accused that makes it more likely that he is guilty that we are relying on evidence of disposition. I will argue also that, while ‘similar fact evidence’ is conventionally concerned with specific incidents from which inferences are sought to be drawn, and ‘character evidence’ is, perhaps not conventionally, but more realistically concerned with the disposition of an accused, the link between the two is that we can only draw valid inferences about the disposition of an accused from specific instances of prior conduct (similar fact evidence). When one is dealing with similar fact evidence – evidence of ‘prior bad acts’ – one is, in truth, dealing with whether this gives us some basis to draw inferences about the character – the disposition of the accused. For almost eternity (under Makin v Attorney General for New South Wales [1894] AC 57 (PC)), our law insisted that similar fact evidence was not admissible if it relied on aspersions on the character of the accused – if it operated upon the disposition of the accused. We seem now to be clear of this (DPP v Boardman [1975 AC 421 (HL); S v D 1991 (2) SACR 543 (A)) so that we no longer need to, nor should we (DT Zeffertt and AP Paizes The South African Law of Evidence 2nd ed (2009)), pretend that similar fact evidence is not, in truth, about disposition. Regarding character evidence, this is/was distinct on the basis that conventionally it referred exclusively to the general reputation of a witness – what the public generally thought of him or her. On this thinking, it was not evidence as to the disposition of the accused which may, in turn, be inferred from evidence of instances of improper conduct. This no longer appears to be the position (R v Malindi 1966 (4) SA 123 (PC) quoting with approval Stirland v Director of Public Prosecutions.[1944] AC 315). In essence then, both ‘bad character’ evidence and similar fact evidence seem to be concerned with instances of prior improper conduct of an accused from which inferences of an errant disposition can be inferred. The alleged misconduct of Pistorius regarding firearms and ammunition form the basis of several charges, in addition to the murder of Reeva Steenkamp which Pistorius is now facing. Importantly though, the question that I wish to address here is whether the evidence of his alleged misconduct regarding firearms and ammunition, and beyond that, of the other (character/dispositional) evidence against him, show that it is more likely true that he is guilty of the murder of Reeva Steenkamp. The general rule, in respect of both similar fact and character evidence, is that such evidence is inadmissible. The rationale is that it is simply irrelevant: its persuasive value is marginal at best and it is typically highly prejudicial – it triggers stereotypical thinking and wastes time and money, and causes the court to be drawn off point. It raises collateral issues which, in itself is problematic, but worse, an accused may be ill prepared to explain everything s/he has done in his/her life. However, there are several grounds on which evidence as to the ‘bad’ disposition of an accused can be exceptionally admitted. In terms of ‘character evidence’, at common law, the most prominent is where the accused leads evidence of his/her good character, the state may respond and present evidence of bad character – by cross-examining the accused or other witness or leading its own witnesses to testify as to the bad character of the accused. In addition, s 197 of the Criminal Procedure Act allows for the cross examination of accused person as to his bad character, (a) where s/he places his good character in issue (as under the common law), or impugns the character of a state witness; (b) gives evidence against a co-participant to the offence, (c) the charges relate to the possession of stolen property; or (d) proof of some prior bad act is admissible to show s/he is guilty on the current charge. It is worth repeating that this section relates only to the cross examination of the accused. The specific wording of the section is as follows: An accused who gives evidence at criminal proceedings shall not be asked or required to answer any question tending to show that he has committed or has been convicted of or has been charged with any offence other than the offence with which he is charged, or that he is of bad character, unless – (a) he or his legal representative asks any question of any witness with a view to establishing his own good character or he himself gives evidence of his own good character, or the nature or conduct of the defence is such as to involve imputation of the character of the complainant or any other witness for the prosecution; (b) he gives evidence against any other person charged with the same offence or an offence in respect of the same facts; (c) the proceedings against him are such as are described in section 240 or 241 [relating to possession of stolen property] and the notice under those sections has been given to him; or (d) the proof that he has committed or has been convicted of such other offence is admissible evidence to show that he is guilty of the offence with which he is charged. It is worth dwelling on the meaning and import of the final exception (197(d)). As mentioned, this effectively permits cross-examination as to some ‘prior bad act/s’ where this would be admissible to prove the current charge. This is an indirect incarnation of the rules relating to similar fact evidence – here making cross examination contingent on whether the similar fact rules would be satisfied. What is similar fact evidence, and when is it admissible? The law on similar fact evidence was governed for a long time by the judgement from the case of Makin (Makin v Attorney-General for New South Wales 1894 AC 57 (PC)). In Makin, the skeletal remains of a baby were found in the garden of a residence rented by the Makins. Their defence was that, while they conceded they had improperly disposed of the body of the baby, the baby had died of natural causes: they had not murdered the child. What made the case interesting, is that the prosecution sought to introduce evidence that the skeletal remains of other babies were discovered in other former residences of the Makins. The court was careful that evidence which tended to show that the accused were of bad character was inadmissible, but such evidence could be admitted if it in some other way disproved the Makin’s defence: ‘It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it is relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.’ Makin spawned a legacy of lawyers who thought about similar fact evidence in terms of categories of evidence, rather than degrees of relevance. Such evidence was admissible only if it qualified somehow, into a neat exceptional category, such as, did the evidence go to show that the conduct in question was designed and intentional, rather than a mistake, or did it somehow otherwise rebut a defence available to an accused. We have now developed, at least in theory, to the point at which our courts seem to appreciate that the true question is whether the evidence (of prior improper conduct) is relevant: whether it properly proves anything (DPP v Boardman [1975 AC 421 (HL); S v D 1991 (2) SACR 543 (A)) so that we no longer need to, nor should we (DT Zeffertt and AP Paizes The South African Law of Evidence 2nd ed (2009)) pretend that the disposition of the accused is not the real issue. While the position is that similar fact evidence is generally inadmissible – exceptions to this rule are also accepted. Our courts have previously insisted on some form of a link or nexus (R v Bond [1906] 2 KB 389 (CCR)) and currently, a ‘striking similarity’ between the prior improper conduct and the conduct in question (DPP v Boardman [1975 AC 421 (HL); S v D 1991 (2) SACR 543 (A)). Nevertheless, it seems that at issue is really only whether any sort of pattern can be discerned from the former conduct, that will sustain inferences being drawn to the conduct in question. It is not clear that our courts are yet comfortable with drawing inferences based on the disposition of the accused, but there appears to be no good reason to shy away from doing so where the disposition of the accused, by virtue of his prior conduct, is relevant (DT Zeffertt and AP Paizes The South African Law of Evidence 2nd ed (2009)). Thus, evidence as to specific prior improper conduct is admissible as ‘similar fact evidence’ where it would establish a pattern which reflects the disposition of the accused, from which the court could draw an inference as to his/her guilt. The topic of ‘character evidence’ does not carry this much further. Putting aside the specific statutory provisions relating to co-accused people and possession of stolen property, the rules regulating character evidence as character evidence allow for the leading of ‘bad character’ evidence or the cross-examination of the accused about his bad character if s/he pursues the line that s/he cannot be guilty because he is a good character. It also allows cross examination of the accused if s/he impugns the character of a state witness. Beyond that the rules governing character evidence as character evidence allow for the cross examination of the accused to establish what would be permitted by the rules regarding similar fact evidence. The bottom line is that if evidence of prior improper conduct by an accused would tend to properly (without, for instance, operating on stereotypes and without wasting time) show that the accused is more likely guilty, the evidence is relevant and admissible. How much weight it is given in the final analysis is another matter entirely. It is worth considering whether this is the case for Pistorius. Presuming that the state can prove allegations of prior improper conduct, would the evidence of a bad temper, a threat to break someone’s legs, having fired a gun out of his sunroof, and another in a restaurant, that he was in illegal possession of ammunition and viewed pornographic material make it more likely true that he intentionally and unlawfully shot and killed Reeva Steenkamp? This is not evidence that he shot and killed several previous girlfriends, or even evidence of repeated domestic violence. I don’t see a court accepting this evidence as establishing any sort of pattern on the basis of which it would be prepared to infer that Pistorius intended to kill Reeva Steenkamp. Of course, if the state were to produce evidence of domestic violence, then valid inferences as to his character (disposition) and ultimate guilt may be drawn. Our ability to discern patterns from complex information make us an intelligent species. But we must be careful that just because the identification of patterns help us understand our world, does not mean the world is full of patterns. *I wish to thank Professor Andrew Paizes (co-author of Zeffertt and Paizes, The South African Law of Evidence) for his helpful comments on an earlier draft. I have amended this post in line with his suggestions. Nevertheless, any mistakes remain entirely mine.

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In order to understand the defence of Oscar Pistorius to the charge of murder against him, it is necessary to have reference to the general requirements of criminal liability (see the overview on this site). In particular, one must have reference to the requirement that the fault requirement of criminal liability must extend or relate to all the essential requirements of the unlawful conduct requirement. In the case of murder, the fault requirement is intention and the unlawful conduct requirement is the ‘unlawful killing of another human being’. It is worth observing that intention is an entirely subjective enquiry – it turns on the actual subjective mental state of the accused. One can only be convicted of murder in South Africa, if you intend not only to kill another human being, but if you intend to unlawfully kill another human being. This is a well-entrenched defence in South African law.

One must be careful though that there are subtle differences between claiming that one has not acted unlawfully, and claiming not to have realised one was acting unlawfully.

A claim that one did not act unlawfully is, of course, a claim to have acted lawfully. One may make such a claim if one raises a ground of justification. Self or private defence is the most well-known ground of justification. To succeed with a claim of self or private defence, one must satisfy a number of specific requirements. These requirements can be divided into those which relate to the attack, and those that relate to the response. The requirements of the attack are as follows:

1) One must be under an unlawful attack;

2) Which has commenced or is imminent;

3) Against a legally protected interest – such as life, bodily integrity, or property (of significant value), or the life, bodily integrity, or property of another.

The requirements of the defence are as follows:

4) Force used in response must be directed at the attacker (and no-one else);

5) Force must be necessary;

6) The extent of force must be necessary and reasonable.

If one satisfies these requirements, one’s conduct is lawful and one escapes liability. If one does not satisfy all of these requirements one’s conduct is unlawful. This is, of course, the position for Pistorius – who has conceded as much. There was no unlawful attack upon him or Reeva.

However, one is only ultimately liable, if, as required (see overview under ‘Fault’), one’s fault (intention for murder) extends or relates to all the requirements of the unlawful conduct. If one did not intend to act unlawfully, one has a valid defence. Thus – and this is what Pistorius appears to be claiming – if one mistakenly believes that one was acting lawfully, in self/private defence, one has a valid and complete defence. Here is the catch – actually, there are two.

Firstly, Pistorius will have to convince a court that he genuinely believed that he was acting in self/private defence. The problem he may face is that our law takes a wide view of ‘intention’ – it regards the foresight of a possibility and reckless persistence in the face of that risk, as intention. An accused who foresees the possibility that one or more of the requirements of private defence may not be satisfied, who reconciles to that risk and persists despite the risk, will be held to have intention in our law. Not only would such an accused have acted unlawfully, but s/he will have intended to act unlawfully – merely by the foresight of a possibility that one of the requirements of self/private defence may not be satisfied, and to have persisted despite this risk. For Pistorius, this means that, having conceded that he acted unlawfully, if the state can show that he foresaw the possibility (and reconciled himself to the risk) that he was not under attack, that any supposed attack had not actually commenced and was not imminent, or that no legally protected interest was truly under threat, he may be regarded as having intended to act unlawfully and can be convicted of murder. Alternatively, even if Pistorius was genuinely mistaken in respect of all of the requirements of the attack, he may also be convicted of murder if he foresaw the possibility that one of the requirements of the response may not have been satisfied. He can be convicted of murder if the state can show that he foresaw the possibility (and reconciled himself to that risk) that he was not acting against the supposed attacker, that force was not necessary, or that the extent of force used was not necessary and reasonable.

The second catch is that even if Pistorius succeeds in his defence (of mistake as to unlawfulness) against the murder charge, the next automatic question will be whether this mistake was a reasonable one. This is the question of culpable homicide. It is judged objectively – whereas intention is judged subjectively. The objective standard of the reasonable person is the basis on which our courts judge negligence. At its essence it is a hypothetical comparison of the actual conduct of the accused against what a reasonable person, in the circumstances of the accused, would have done. If there is any deviation on the part of an accused from what the reasonable person would have done, the accused will be judged to have acted negligently. It is worth noting that our law is only prepared to take account of the immediate external circumstances of an accused – and to hypothetically place the reasonable person in these circumstances. Our law has steadfastly refused to take account of any subjective factors peculiar to an accused, including any disability that the accused suffers with. This has been controversial, but it has been a line from which our courts have not wavered. If the reasonable person would not have made the mistake Pistorius claims to have made, even if the court accepts that Pistorius made this mistake, he may be convicted of culpable homicide.

Like this:

If I shoot a gun at a particular person, but I miss, the law recognises that the bullet may easily come to rest in a wall, a tree, or fall harmlessly to the ground somewhere. It could also, of course, strike another person – and this is where things get interesting. This is known in SA law as a scenario of aberratio ictus (going astray of the blow). Our law used to take the view that this was no defence – you still killed a human being. It used to do this by “transferring intent” from the intended victim, to the actual victim. But we have now shifted to the position that recognises that, if you miss your target (although you are liable for attempted murder in respect of your intended victim), whether you are liable for murder, if the bullet happens to strike another person and kill him/her, must depend on whether you had intention (in law, at least foresight) of this prospect.

This is all very different from scenarios of “error in objecto”. It doesn’t matter if an accused intended to kill one person (say, Bill), but killed another instead (say, Jake) – at least not in the sense that the identity of the victim matters. Thus, an accused who intends to kill a particular human body, and kills that human body, incurs liability for murder (assuming capacity and unlawfulness). The mistake involved (“error in objecto”) where one human body is mistaken for another, is an immaterial/inessential error – that is, it does not affect one’s liability. An error in objecto may be material where one shoots at what one thinks is a scarecrow, say, but it transpires that the scarecrow was a human being. This would be an essential/material error and one could not be convicted of murder, which requires the intentional unlawful killing of another human being – one must intend to kill a human being.

The problem is that it is easy to confuse an aberatio ictus (where one misses one’s intended victim and someone else is killed), with the scenario of an inessential error (in objecto) where one shoots at and kill a particular person. The fundamental difference is that in the former (aberatio ictus) there are actually two people/victims, and you kill a person you may not intend to kill. In the second scenario of the inessential error (in objecto) there is only one person/victim and you kill that human being – the human being you intend to kill.

Oscar did not miss his target. He fired at and killed whoever was behind the door. It is therefore no a case of aberatio ictus. It is, at best, an immaterial/inessential error (in objecto) – no defence. Instead, his defence, at least his original defence, is that he did not intend to kill whoever was behind the door UNLAWFULLY. This is a recognised defence. Oscar only needs to raise in the mind of the Court a reasonable possibility that he made this mistake to escape a murder conviction.